Thursday, 18 December 2014

The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection

Steve Peers

At long last, the CJEU has today delivered its ruling regarding
the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex
judgment that raises many legal questions. For now, this post seeks to provide:
a summary of the ruling; an assessment of the consequences of the ruling; and
an initial critique of the Court’s reasoning. On the latter point, the Court’s
ruling is fundamentally flawed.In
short, the Court is seeking to protect the basic elements of EU law by
disregarding the fundamental values upon which the Union was founded.

Background

Back in 1996, in Opinion 2/94,
the CJEU ruled that as European Community law (as it then was) stood at that
time, the EC could not accede to the ECHR. Only a Treaty amendment could
overturn this judgment, and in 2009, the Treaty of Lisbon did just that,
inserting a new provision in the Treaties that required the EU to accede to the
ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties,
regulating aspects of the accession, as well as a Declaration requiring that
accession to the ECHR must comply with the ‘specific characteristics’ of EU
law.

However, these new Treaty provisions could not by themselves make the
EU a contracting party to the ECHR. To obtain that outcome, it was necessary
for the EU to negotiate a specific accession treaty with the Council of Europe.
After a long negotiation process, this accession treaty was agreed in
principle in 2013. Today’s ruling by the CJEU concerns the compatibility of
that treaty with EU law.

Summary

At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which
will regulate the EU’s involvement in the ECHR have not yet been drafted. In
fact, the CJEU said that these internal rules couldn’t be the subject-matter of
the opinion, even if they had been drafted. The UK government had reportedly
been very angry about the prospect of the CJEU considering these internal
rules, so it should be satisfied on this issue.

Next, the Court made some preliminary
points (paras 153-77), asserting for the first time expressly that the
EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by
itself, without using that exact Latin phrase. Those critics of the EU who
consider it to be a State, and those academics who dislike the sui generis concept, now have some words
to eat. The Court also asserted that it
was important to ensure the primacy and direct effect of EU law, referring also
to the EU’s goals of ‘ever closer union’.

The Court then ruled that the draft agreement was incompatible with EU
law, for five main reasons. Firstly, it did not take account of the specific characteristics of EU law
(paras 179-200), in three respects. It did
not curtail the possibility of Member States having higher human rights
standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member
States could not have higher standards than the EU Charter of Rights, where the
EU has fully harmonised the law. The same rule applies to the ECHR, in the
Court’s view, and the draft agreement did not take account of this. Similarly, the
draft agreement did not provide for the application of the rule of ‘mutual
trust’ in Justice and Home Affairs (JHA) matters, which means that Member
States must presume that all other Member States are ‘complying with EU law and
particularly with the fundamental rights recognised by EU law’, other than in
‘exceptional circumstances’. Also, the agreement failed to rule out the
possibility that when applying Protocol 16 to the Convention, which provides
for national courts to send questions to the European Court of Human Rights
(ECtHR) on the interpretation of the ECHR, those national courts would ask the
ECtHR to rule on EU law issues, before they asked the CJEU. This would
circumvent the EU’s preliminary ruling procedure.

Secondly, the draft accession agreement violated Article 344 TFEU, which gives theCJEU monopoly on inter-state dispute settlement regarding
EU law between Member States (paras 201-14), since it failed to rule out the
possible use of the ECtHR to settle such disputes instead.

Thirdly, the co-respondent
system set up in the draft agreement, which creates a new type of
procedure where both the EU and a Member State could be parties to an ECtHR
case, was incompatible with EU law for three reasons (paras 215-35). The
problem with this process was that: it would give the ECtHR the power to
interpret EU law when assessing the admissibility of requests to apply this
process; a ruling by the ECtHR on the joint responsibility of the EU and its Member
States could impinge on Member State reservations to the Convention; and the ECtHR
should not have the power to allocate responsibility for breach of the ECHR between
the EU and Member States, since only the CJEU can rule on EU law.

Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law
issues were also incompatible with EU law, for two reasons (paras 236-48). They
did not reserve to the EU the power to rule on whether the CJEU has already
dealt with an issue, and they did not permit the CJEU to rule on the interpretation,
not just the validity, of EU law.

Finally, the rules on the
Common Foreign and Security Policy (CFSP) were incompatible with EU law
(paras 249-57), because a non-EU court cannot be given the power of judicial
review over EU acts, even though the CJEU has no such jurisdiction itself as
regards most CFSP issues.

Consequences

First and foremost, EU accession to the ECHR obviously cannot go ahead
on the basis of the current draft agreement. The Court has in effect provided a
checklist of amendments to the accession agreement that would have to be made
to ensure that accession is compatible with EU law. The amendments would have
to deal with the following ten issues: (a) ensuring Article 53 ECHR does not
give authorisation for Member States to have higher human rights standards than
the EU Charter, where the EU has fully harmonised the law; (b) specifying that
accession cannot impact upon the rule of mutual trust in JHA matters; (c)
ensuring that any use of Protocol 16 ECHR by national courts cannot undermine
the EU preliminary ruling system, presumably by ruling out the use of Protocol
16 where EU law issues are involved; (d) specifying expressly that Member
States cannot bring disputes connected with EU law before the ECtHR; (e) ensuring
that in the co-respondent system, the ECtHR’s assessment of admissibility does
not extend to the power to interpret EU law; (f) guaranteeing that the joint
responsibility of the EU and its Member States for ECHR breaches cannot impinge
upon Member State reservations to the Convention; (g) preventing the ECtHR from
allocating responsibility for ECHR breaches as between the EU and its Member States;
(h) ensuring that only the EU institutions can rule on whether the CJEU has
already dealt with an issue; (i) providing that the CJEU should be allowed to
rule on the interpretation, not just the validity, of EU law, during the ‘prior
involvement’ procedure; and (j) curtailing the role of the ECtHR to rule on EU
foreign policy matters.

Any such changes to the accession agreement will have to be negotiated
by all 47 of the signatories to the ECHR. The accession agreement would, if
agreed, then have to be ratified by all of these States to come into force. It
would also have to be agreed unanimously by the EU Council, and ratified by the
European Parliament.

It’s hard to say in the abstract how difficult such a renegotiation
will be. Suffice it to say that the compromise found in the current accession
treaty was very difficult to reach, and it’s hard to imagine that the EU’s
demand for a ten further amendments to that text – which would necessarily be
non-negotiable – would be received happily.

Some of the Court’s objections probably correspond with the intentions
of the parties to the accession agreement, and it should be easy to accept
amendments reflecting that. However, some of them insist on either the primacy
of the EU Courts over the ECtHR, or would give priority to EU law over the
substance of the rights protected by the Convention. Those amendments would be
difficult to agree in principle, and it might even be doubted whether they
would be compatible with the intrinsic nature of the ECHR.

If those amendments were indeed be incompatible with the ECHR, there
would be no point wasting further time and effort on negotiating them. So it
would be best for the Committee of Ministers to invoke Article 47 ECHR, which
allows it to ask the ECtHR to give an advisory opinion on the interpretation of
the Convention or its protocols. Arguably, this doesn’t extend to the draft
accession agreement, but then that agreement in its current form would amend
the ECHR; any revised agreement would likely amend the ECHR even more. The
ECtHR ought to have a chance to rule on whether the CJEU’s preferred amendments
to the ECHR violate the fundamentals of the Convention system.

Could the Court’s objections (or some of them) be met by the EU making
reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention
are permitted, provided that they are not of a ‘general character’. The ECtHR
has ruled in the past that some reservations were invalid for breaching that
rule. Much legal pain would be avoided if the ECtHR ruled in advance (using the
advisory procedure) on whether possible reservations by the EU would be valid. Arguably
reservations relating to CFSP or JHA matters would indeed be invalid, due to their
‘general character’.

What if the process of EU accession stalls as a result of this
judgment? It’s hardly an unlikely scenario. As a matter of EU law, accession of
the EU to the ECHR is an obligation: the EU ‘shall accede’ to the Convention.
The EU institutions can be sued for any ‘failure to act’ to comply with their
legal obligations. So arguably the Commission is under an obligation to request
an amendment to its negotiation mandate, the Council is under an obligation to
grant it, and the Member States are obliged to support the EU position (a
breach of the latter obligation could be punished by means of infringement
proceedings).

But a legal obligation deriving from the EU Treaties cannot bind third
parties. If the ECtHR, or one or more non-EU Member States, refuse to continue
with negotiations for accession on the basis of the CJEU’s demands, the EU
institutions and the Member States could not be held liable for that.

The legal obligation to continue the accession process is, of course,
distinct from the question of principle here: whether the accession process ought to continue on the basis of the
CJEU opinion. I now turn to that question, as part of my assessment of the
Court’s reasoning.

Comments

There are two categories of objections to the ECHR accession in the
Court’s judgment: procedural and substantive. The former are, for the most
part, much less problematic than the latter. Let’s consider them in turn.

The procedural objections are essentially those in points (c) to (i)
in the list above, concerning: Protocol 16 ECHR and the preliminary ruling
process; inter-state dispute settlement; the co-respondent procedure; the prior
involvement procedure; and CFSP matters. Seven of these eight points have one
thing in common: preserving the CJEU’s power to rule on EU law. The exception
is point (i), because to a large extent, the CJEU has no power to rule on CFSP
matters.

From the point of view of substantive human rights protection, that
first group of seven objections is not problematic in principle. It is
reasonable for the CJEU to ensure that issues relating to EU law remain within
its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR
jurisdiction to rule on the interpretation of the ECHR. Of course, it will be
hard, if not impossible, in practice, to separate the two issues, particularly
when it comes to ruling on the liability for breach of the Convention and the
admissibility of the special procedures set up by the draft agreement.

But that is a minor problem compared to the Court’s objections
relating to CFSP, and to the substance of the ECHR. On the CFSP point, the
Court’s objection is quite simply mind-boggling. Human rights breaches
unfortunately occur in foreign policy operations, ranging from violations of
the right to life, to arbitrary detention to human trafficking by foreign
forces. The CJEU has no jurisdiction to protect, as regards most CFSP matters;
but it rules that the ECtHR cannot have
judicial review powers either. (Note to public international lawyers: this
must mean that it would also breach EU law for Member States to bring a CFSP
dispute to the ICJ).

This goes beyond setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s
position is that if it can’t have jurisdiction over CFSP, then no other international court can either.
In short. since it isn’t allowed to play, it’s taking the football away from everyone
else. It’s the judicial politics of the playground. But it could have serious
consequences, leaving the victims of serious human rights violations without an
effective remedy at international level. Or is the entire world meant to trust
that the military forces from the continent that brought us the Holocaust and
two World Wars would never, when acting under the EU’s aegis, commit human rights offences?

This brings us to the two substantive points: the need to ensure that
Member States do not set higher standards within the field of EU law, and the
need to protect the principle of mutual trust in JHA matters. On the first
point, the Court is today extending to the ECHR its long-standing principle
that the primacy of EU law prevents Member States having higher human rights
standards, where EU law has fully harmonised the matters concerned. From an EU
law perspective, it’s perhaps not surprising that this rule – which the Court
had previously applied to the general principles of EU law (the main previous
method of protecting human rights in the EU legal system) and the Charter –
also applies to the ECHR. But from the perspective of international human
rights law, it’s shocking: it cuts into a central principle found in all human
rights treaties.

The Court’s ruling on this point would be less problematic if it were not
for its ruling on mutual trust in JHA matters. After all, if it were possible
to resist removal to another Member State on human rights grounds despite the Dublin
rules on asylum responsibility, or to resist the execution of a European Arrest
Warrant on such grounds, then many violations of human rights in individual
cases would be avoided. But the Court reiterates, in very strong terms, its established
presumption that the EU is built on the principle of mutual trust in this area,
which can only exceptionally be set aside. One can infer that the CJEU is
seething about the ECtHR’s recent judgment in Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly
reasoned defence of the Dublin system in last year’s Abdullahi judgment (see discussion here).

On the JHA point, the Court is insisting that its own conception of
the EU JHA system must prevail over human rights protection as defined by the ECtHR.
The underlying theme of both of these substantive points is that the ECHR
should adapt to EU law as defined by the CJEU, not the other way around.

Is that fundamentally justifiable? It’s striking that the ‘values’ of
the EU – which are a condition for EU membership, and which could lead to
suspension of a Member State in serious cases – include human rights and
related principles. There’s no mention of the primacy of EU law, of mutual
trust in JHA matters, or of divesting any international court from having jurisdiction
over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows
contempt for the ‘rule of law’, another founding value mentioned in Article 2
TEU. And for JHA in particular, the Treaty drafters provided in Article 67(1)
TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’.
The Treaty doesn’t give priority to mutual trust over human rights – quite the
opposite.

This leads me to a final point. As noted above, the EU retains a legal
obligation to accede to the ECHR, and must therefore take some steps to that
end. But, as a matter of principle, is it still worth advocating EU accession
to the Convention?

Quite frankly, EU accession to the Convention, in the terms defined
today by the CJEU, could only appeal to those who don’t like human rights very
much. In fact, in many respects the Court’s judgment is essentially a more articulate
and EU-specific version of the document recently produced by the UK’s Justice
Minister, which sought changes to the law to ensure that the UK would be free
to do as it wished as regards human rights issues, while (possibly) nominally
remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend
to dislike the EU as well, so this is a narrow basis politically to go forward.
In particular, those who would like to scrap the European Arrest Warrant (EAW) because of
the miscarriages of justice which it sometimes produces (rather than try and prevent those miscarriages) are hardly likely to
favour a process which would be specifically aimed to entrench those failings.

As for those of us who support human rights protection, today’s
judgment is an unmitigated disaster. For the most part, human rights advocates
have supported EU accession to the ECHR for many years, in order to ensure effective
external control of the failings of the EU and (within the scope of EU law) its
Member States as regards human rights. But today’s CJEU judgment has surgically
removed that key reason for supporting accession.

Far from enhancing the protection of human rights within the EU legal
order, the EU’s accession to the ECHR, on the terms which the CJEU insists upon,
would significantly diminish it, for the EU would be compelled to ensure that
it insulates itself against many human rights claims that might be brought
against it.

So for the sake of those who are trafficked by EU-coordinated troops,
who are suffering miscarriages of justice in EAW proceedings, who are being pushed
back from the EU’s shores, drinking from toilets in immigration prisons,
starving on the streets because Member States won’t or can’t give them housing
or benefits, or drowning in a desperate attempt to reach European refuge, we now
have a moral duty to reject the EU’s accession to the ECHR.

35 comments:

On the CFSP point: I disagree with your comment: it is true that CJEU has no jurisdiction to protect, as regards most CFSP matters; but its reasoning is that the European Union cannot agree to an international agreement which submits such CFSP to an outside body, because that would amount to modify the Treaty on judicial review of CFSP matters (which is something the European Union cannot do by itself or by way of an international agreement): the treaty rules on CFSP matter being outside the CJEU jurisdiction do not create a "legal void", but positively exclude the jurisditional review; if MS wish to have CFSP be subject to jurisditional review, they should amend the Treaty. It is a separate issue that, by making such matters reviewable, they would be foced to comply with the exclusive CJEU jurisdiction rule.

This reasoning is circular though. In my view, since the Treaty excludes the CJEU from having jurisdiction over most CFSP matters, it's open to the Member States to decide whether another international court has jurisdiction. You won't find anything in the treaty expressly preventing them from doing this; and the foundation of the EU on the 'rule of law' can only bolster this interpretation.

While I agree with your view re CFSP, Professor Peers, it should be noted that doemstic courts -- which the ECJ in its opinion again emphasize the importance of in the Union legal system -- might actually have jurisdiction for those CFSP cases that are outside CJEU jurisdiction.

See TFEU article 274, which provides that the fact that the Union is a party to a case does not preclude the jurisdiction of domestic courts, given that the CJEU lacks jurisdiction. Although this article was originally probably meant as a corollary to TFEU article 273, it has recently been pointed to as a possible legal basis for the involvement of domestic courts in CFSP matters falling outside TFEU 275(2).

Thanks for your comment, Oby. I think that national courts must necessarily have jurisdiction over CFSP matters, otherwise the principle of the rule of law is non-existent. And absent EU accession to the ECHR, the ECtHR surely currently has jurisdiction to hear cases following the exhaustion of domestic remedies. Or would the CJEU go so far as to say they can't? (See the other comments). It's hard to see how it would have jurisdiction to rule on this issue though.

(continuing from above, since I forgot to actually finish my comment...)

Given that domestic court may have jurisdiction, one could potentially argue that Union courts (in the wide sense) are competent, and that ECtHR jurisdiction is thus excluded. However, this is not what the ECJ argues at all. Like most other parts of the Opinion, it refuses to go deeper and properly explain its findings.

Moreover, IF domestic courts are indeed seen as part of the EU's juridial arcitecture, and IF they have jurisdiction over such CFSP acts, then there also should be no problem with accession, as a competent Union court (the applicable domestic court) would be able to interpret EU law before the case goes to Strasbourg...

I feel that there are so many of the ECJ's arguments in this Opinion that would, if spelled out more in detail, would have produced the opposite result. There seem to be many "intellectual shortcuts".

For example, although constantly referring the the EU as an autonomous legal system, a concept it placed much emphasis on, the ECJ failes to recognize that the binding effects of an ECtHR judgment does not extent to the ECtHR's potential interpretation of EU law. If the ECtHR was to interpret EU law, and gets it wrong, the ECJ would of course be legally capable of changing that intepretation if a similar case comes up before it. The ECtHR can only interpret the ECHR with authoritiative force, not EU law -- obviously. What is legally binding in an ECtHR judgment is the operative paragraphs, not the reasoning -- it is merely authoritiative, and obviously only then the ECtHR interprets ECHR law.

It is a sad day for human rights in Europe, and and equally sad day for those that believed that the ECJ would be able to interpret and apply its own law in a consistent, coherent, and legally sound manner.

I disagree: it is not open to MS to take decision on matters which fall within the Treaties by using procedures which are outside the Treaties: like for the treaty making power, if a matter falls within the competence of EU, it is irrelevant that a specific issue is not expressly covered by a distinct EU rules: MS still do not have the power to agree outside EU procedures on issues which have or may have a direct or indirect impact on matterscovered sufficiently broadly by EU. Likewise, the issue of judicial review of CFSP is not "in vacuum": is expressly covered by EU Treaties, so that MS cannot anymore decide on the issue "outside" the Treaties.

Properly speaking, this case is about what the EU can do, not what the Member States can do. And your substantive argument still isn't convincing: the Treaties rule out judicial review of the CFSP *by the CJEU*; that can't be taken to rule out other forms of judicial review by implication. Following your logic, national court jurisdiction over CFSP acts would be ruled out also. Why would the principle of the rule of law have no role to play here?

Likewise the (non) possibility for individuals to challenge regulations before the CJEU, the right of action (and rule of law) principle cannot circumvene the Treaties: the issue is that the CJEU stated that judicial review on CFPS is a matter "within" the sphere of EU Treaties, so that MS (and EU Institutions) cannot take action which may impact on them by using "outside" procedures; the rationale is the same used in other cases: if the matter is covered by EU law, absence of a specific rule in EU law does not enable MS (or the Institutions) to act: in the Advice on the Lugano Convention on Jurisdiction, the mere indirect effect of the Convention of the 44/2001 Regulation was considered sufficient to make the matter fall "wholly" within EU competence, thus depriving the MS of the power to act.In a nutshell, by stating that CFSP matters cannot be reviewed by CJEU the Treaties make the issue of "jurisdictional review" a matter for the Treaty to decide, not an issue on which the MS (and the Institution) can follow separate paths.Incidentally, I do believe that, if a national court would try to block the effect of a CFSP act per se (as a separate act from the national legislation implementing it) despite the EU giving such act effect, it would be against EU law and the State would be in breach (from the EU point of view); just think of the Melloni case: if the Spanish Court had considered the CJEU decision in breach of the "Solange" test and upheld the "national" standard against the "EU" standard, the CJEU would have nonetheless considered it a breach of the MS.

But some limits on direct actions are built into the Treaties, whereas the rule of law is one of its founding values. I disagree with the starting premise that the judicial review of CFSP is within the scope of the Treaties, except as regards the CJEU. The Lugano judgment analogy doesn't hold; how could the CJEU's jurisdiction over the CFSP be affected, when it doesn't have any? Anyway, this whole line of reasoning assumes that the CFSP is just like any other area of EU law, which is problematic in itself (although it's inherent in the Court's ruling).

As for the question of a national court ruling on the validity of an EU CFSP measure, the Melloni point would only arise if the EU has fully harmonised the law, and if the act doesn't infringe the Charter. But then, who could judge whether the Charter is infringed in the first place, if the CJEU and ECtHR cannot? I can't see how the logic of the Melloni ruling could apply, because of this jurisdictional point. And again, following your logic, the national courts should have no jurisdiction at all over CFSP measures. The CJEU might well be attracted by your reasoning, so thank God there's probably no way that it would ever be able to rule on this point.

Just to focus on the CFSP issue, the CJEU argument is not the draft affecting its own jurisdiction (since CJEU does not have it), but that the draft regulates a matter (i.e. Judicial review of CFSP) which falls within the Treaty i.e. A matter which can be regulated only by amending the Treaty and not by a separate international agreement - the rationale is that the fact that the treaty says CJEU does not have jurisdiction on CFSP does not mean that MS or the Institutions are free to confer jurisdiction on such matters by using a procedure other than the Treaty amendment; i.e. the negative clause on CFSP judicial review makes the issue nonetheless a matter of EU law, so the MS are not free to agree on the issue 'externally' and the Institution cannot use a lower instrument (accession treaty) to change the treaty.

I still don't agree with this argument, for all the reasons set out above. And now that Advocate-General Kokott's view is released, I see that she didn't agree with it either. If you think about it, the argument that 'if an EU institution has no power to do this, it's therefore a matter of EU law' is not only self-evidently contradictory, it's dangerous in competence terms. Would it mean that where the EU hasn't got any competence to act, or has shared competence but hasn't exercised it, Member States are prevented from acting? That line of argument contradicts the Pringle judgment.

1) the Court argument is different: it goes "If the Treaty has a rule on whether a matter is subjuct to judicial review or not, you can't take the issue outside the Treaty" - it stems from EU being not a mere Intl org (where your argument would apply) and it is more like a constitutional limitation (i.e. To modify the rule you have to change the Trety, you can't do that with an intl agreement).2) apart from the fact that CJEU stated that even before EU exercising its power, the MS must still act - when they have the power to do so - in a matter which does not jeopardise or prejudice the EU, so that the mere "potential" competence does have an effect, limitating the MS action, the parallel is that a negative rule is still a rule, so that the existence of the rule makes the matter "regulated": - as for the JHA, I must say that whilst I agree with you on the merits, I can see the issue raised by the CJEU, since it is quite the same raised by some national Constitutional Courts, i.e. that ECHR standards may be in conflict with national standards and formally speaking the ECHR is a treaty and therefore has a lower rank that national Constititions, and the decision of the ECHR on the interpretation of such standards within the context of the Convention does not bind the national Constitutional Court in interpreting the national Constitution standards: e.g. The Italian constitutional Court has upheld national rules which had been judged by the ECHR as contrary to the Convention, arguing that such rules nevertheless protected a different constitutional principle of the national constitution and the convention could not modify the constitution, beng it a lower rank act - so from a theoretical point of view the CJEU adopts the same approach: the ultimate decision on whether a EU act is in compliance with EU law must be taken within EU only (to make a parallel, think of the CJEU approach for WTO decisions: despite an action being contrary to WTO as decided by the appellate body, nonetheless individuals can use such illegality as a ground to void the action within the EU system)

1) You're not going to convince me on this. Seriously, why should the Treaty provision ruling out CJEU jurisdiction on CFSP be taken to rule out ECtHR jurisdiction on the same issue, when the Treaty is silent on that point, refers frequently to the ECHR, human rights and the rule of law and provides expressly for ECHR accession, and when the exclusion of ECtHR jurisdiction is anathema to the basic principles of international human rights law?

2) Yes, the Court's position on JHA is similar to national judicial and political objections to the ECtHR rulings. That's what I was getting at by my reference to the Conservative party position paper on the ECtHR. But as inarticulate as that paper is, it touches on a legitimate issue - to what extent should an international human rights court overrule national courts and legislatures? Yet to make this argument at EU level, you have to appeal to national constitutional patriotism, whether that takes a judicial or a parliamentary form. The CJEU doesn't attempt to make such an argument. It simply says that the supremacy of EU law (its own creation, not accepted as such by many national courts and legislatures) would be threatened. The rejection of the ECHR in the terms set out by the CJEU can't be based simply on the kind of thin legalism that the judges (and you) use here; given the primordial role of human rights in the EU legal order, only a much more fundamental normative argument about the legitimacy of the EU legal order as a whole could have a chance of winning the argument. It's hard to square the CJEU's ECHR ruling with its judgment in Kadi, as a matter of principle - the only point in common is that the CJEU thinks that no-one else can rule on human rights issues (as they affect the EU) as well as itself. You can't found political legitimacy on judicial vanity.

1) we agree to disagree :)2) supremacy of EU law for the EU system is the equivalent of the hard core of constitutional values that some national Courts defend against EU (and ECHR) - it is not a matter of "legitimacy" or "patriotism" but of using a "lower rank" instrument (accession treaty) to interfere with a treaty rule: the identical issue is for States who have a "rigid" constitution (alike the Treaty binds the CIEU): the accession treaty to ECHR or EU has a "lower rank" than the Constitution itself, so that the national Constitutional Court cannot accept it can derogate to a higher ranking rule - usually they will find a way to reconcile the "construction" of the two set of rules, but if they are requested of an opinion on the point of principle, they will always say that in the very end, if all other paths have been explored to avoid the conflict, eventually it is the Constitution and neither ECHR nor EUwhich prevails. Incidentally, this approach can be beneficial: it has been used recently by the Italian Constitutional Court to reject the applicability in Italy of the ICJ decision on Germany immunity, being it against the "hard cre values" of the Constitution, despite being Italy boubd - as a matter of international law and treaty obligations - to apply the ICJ decision.

I think this approach is too legalistic. Ultimately the argument that national values ought to prevail over the ECtHR is based on the principle of constitutional patriotism, at least at the level of popular legitimacy. Even as a legal argument, the CJEU's ruling fails to take account of the EU status as a non - State as well as the existence of many references to human rights and the ECHR in the treaty. While most authors of national constitutions would probably argue that they intended them to prevail over the ECtHR in the event of conflict did the drafters of the Treaty really intend the same? And a crucial difference between States and the CJEU is that most governments thought that signing the ECHR was compatible with their national constitution as a starting point. Any conflicts between ECtHR rulings and the national constitution could be resolved by not applying the relevant rulings. Why couldn't the CJEU take that approach?

Great article, it was a pleasure reading it.. and a huge disappointment of all this CJEU & ECtHR marriage process (I was one of supporters). It looks as the wedding treaty was dictated by the one party, practically neglecting the very reason of this 'marriage'.

It was common knowledge that the CJEU was not favorable to the EU accession to the ECHR. The adoption of a specific EU Convention on human rights (the Charter) has strengthened its opinion on the matter - especially since the negotiators of the Charter (the first Convention in 2000) took great care to build on the ECHR rules and ECtHR jurisprudence (see the text of the Charter preamble). At that time, it had been considered that the Charter settled the matter of the respect of human rights by EU institutions; it was then envisaged to create an informal mechanism of consultation between the two courts to minimize conflicts of jurisprudence - but this did not materialize. The present stalemate is regrettable and could/should have been avoided by the negotiators of this accession draft act. However, there is no "péril en la demeure" as far the protection of EU citizens against infringements of their rights is concerned. The CJEU - and, on a different level, the European Ombudsman - are alert and effective. The main gap is that of the partial/total exclusion of acts relating to JHA and CFSPn from its jurisdiction : perhaps the ECtHR could help in this respect by denouncing this situation? JGG

I don't think the stalemate could easily have been avoided, as I don't believe that the content of the Court's opinion was so self-evident, at least not to the public (there were perhaps broad hints being dropped in private though). I can live with the current system of human rights protection, but I think there is peril in what the CJEU demands re the ECHR. If the ECtHR denounces the CJEU's position, I don't think that would move the EU towards accession, just the reverse. Why would the Full Court of the CJEU then back off the position that it's taken? Such a judgment of the ECtHR would be valuable for precisely the opposite reason - because it would prevent EU accession to the ECHR, which is now imperative for the reasons I set out in the blog post. There's a risk, though, that the ECtHR might instead decide to defer to the CJEU. That would raise a realistic (but horrific) chance of EU accession to the ECHR on the CJEU's terms. Is it worth the gamble? Would the ECtHR advisory jurisdiction even be applicable?

I wonder if the Court of Justice could be sued at the General Court for breach of its obligation under article 6 (2) TUE, namely the obligation to support the accession to the ECHR as the Court is also an EU institution to which article 6(2) is opposable. For this case scenario, see mutatis mutandis C-50/12 P, EU:C:2013:771 where the Court of Justice said that damages can be obtained when the General Court breaches a primary EU law obligation, namely article 47 of the Charter.

Could worth the try just to see what the judges have to say in relation to what institutional obligation could article 6 (2) impose on them because I really doubt that they can free ride against the perfect obligation imposed on the EU to join the ECHR.

If they refuse to play by their own invented judicial rules, then a Treaty amendment that would say: the CJUE does not have competence to rule on the compatibility of the accession to the ECHR - it is really desirable and perhaps the only hope. It looks like the EU judges do not want to cooperate with the ECHR under the terms that the political will of the MSs is to determine. This reminds me of one Lithuanian President that sent the ratification of its country accession to the ECHR to its national constitutional court, in order for them to check if the accession of Lithuania to the Convention is constitutional :))

Could CJUE be judge in its own trial? Nemo iudex in cause sua. Plus, from C-50/12 does not result that there is an appeal to the Court of Justice, after the case is decided by the General Court. I would really want to see one of the EU institutions going against the Court for this and using the ratio from C-50/12. And I even wonder if I would have a locus standi, as a simple EU citizen.

The CJEU has ruled on its own cases, at least where they involved staff disputes. The CJEU judgment in Case C-50/12 doesn't concern a case against the CJEU and didn't rule that all appeals from the General Court are inadmissible; it just rejected an appeal from that Court on the merits. It's hard to see how a citizen would have standing to bring a direct action against the Court on this issue, since the standing rules in Art 263 TFEU wouldn't be satisfied.

It seems the CJEU is the only obstacle on the way towards accession, as the other EU institutions agree on that. Is it not possible not to ask the CJEU an opinion in the future? Article 218(11) TFEU suggests that such an opinion “may” be obtained, not “shall”. Niko

In hindsight, maybe it was a mistake to ask the CJEU its opinion this time. But now it has given its opinion, the draft accession treaty can't be signed unless it is amended to meet the CJEU's concerns, or the EU Treaties are amended again.

I was given your article to comment for my EU course, but I didn't get one point, you wrote

"and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law."

Why can't the ECtHR allocate responsibilities? It concerns a breach of the ECHR not EU law, so it does fall, in the case of an accession, under the jurisdiction of the ECtHR, I can't understand why the ECJ should have its say in the matter

The answer is that it is up to EU law and the CJEU to decide on the division of power between the EU and its Member States, not an external court. Yes, it's an issue of interpretation of the ECHR as well, it's very hard to separate the two.

"The Court understands autonomy to signify that the EU may be a construction of international law, but that in its internal order its own rules displace the principles and mechanisms of international law." (http://europeanlawblog.eu/?p=2731). Does this refer to what you stated in this article: that the Court highlighted in its opinion that 'the EU system is sui generis, i.e. a class by itself'?

If they refuse to play by their own invented judicial rules, then a Treaty amendment that would say: the CJUE does not have competence to rule on the compatibility of the accession to the ECHR - it is really desirable and perhaps the only hope. It looks like the EU judges do not want to cooperate with the ECHR under the terms that the political will of the MSs is to determine. This reminds me of one Lithuanian President that sent the ratification of its country accession to the ECHR to its national constitutional court, in order for them to check if the accession of Lithuania to the Convention is constitutional